Montana is sued over policies restricting trans people from amending identity documents

Two transgender Montanans are asking a judge to block enforcement of state agencies’ policies restricting trans people from changing their designated sex on official documents.

The American Civil Liberties Union of Montana, the ACLU Foundation LGBTQ and HIV Project, and law firm Nixon Peabody LLP filed a class action lawsuit against the state of Montana in April on behalf of Montana resident Jessica Kalarchik and an anonymous resident over restrictions on changes to sex designations on birth certificates and driver’s licenses.

Republican Montana Gov. Greg Gianforte, the Montana Department of Public Health and Human Services, DPHHS Director Charles Brereton, the Montana Department of Justice, and Montana Attorney General Austin Knudsen are all named as co-defendants in the lawsuit, which was filed with the First Judicial District Court in Lewis and Clark County.

The defendants did not immediately respond to requests for comment from the Montana Independent.

On May 17, the two Montanans’ lawyers filed a request for a preliminary injunction against the policies and another request for certification of a class consisting of all transgender Montanans — an estimated 3,400 people, based on a study referenced in the latter filing.

“For anybody in Montana, having identity documents that are accurate is crucially important,” Alex Rate, legal director for the ACLU of Montana, told the Montana Independent. “And for nontransgender Montanans, that’s never an issue. But when you’re trans, you need to amend your identity document to accord with your gender identity, for purposes of being served at a bar, for purposes of interacting with law enforcement, for all sorts of purposes that nontransgender Montanans take for granted.”

The lawsuit, Rate said, is aimed at ensuring that trans Montanans have the same rights as everybody else in the state.

In one of the May 17 filings, lawyers for Kalarchik and the anonymous resident argue that Montana has a history of “discriminatory animus” against trans people.

The state already tried to restrict trans Montanans’ ability to amend their birth certificate’s sex designation with a 2021 law that required anyone seeking such a change to get a court order based on proof that their sex had “been changed by surgical procedure.” The ACLU of Montana and other parties to the current lawsuit also sued the state over this earlier law, winning a preliminary injunction and blocking it from being enforced.

Nevertheless, the Montana DPHSS “openly defied” that ruling by promulgating a rule completely barring trans individuals from amending the sex on their birth certificates, according to one of the filings.

In June 2023, Yellowstone County District Court Judge Michael Moses held the state in contempt for ignoring the earlier ruling, the Daily Montanan reported at the time.

“The defendants spent considerable time and effort defending a statute they knew was unconstitutional. They ignored orders from this Court and an order from the Supreme Court,” Moses wrote in his ruling.

However, the state DPHSS announced in February it was reinstating the restriction Moses had struck down, arguing that a 2023 law codifying a restrictive definition of sex required the agency to do so.

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” Brereton, the DPHHS director, said in his agency’s announcement.

The new lawsuit targets both the DPHHS rule and the Montana Motor Vehicle Division’s subsequently enacted policy of barring changes to sex designations on driver’s licenses, calling them evidence of intentional discrimination against trans people.

“Through Defendants’ policies and practices, Defendants have sought to do something

beyond even what SB 280 and its 2021 regulation sought to do by now attempting to abolish any opportunity for transgender individuals born in Montana to correct the sex designation on their birth certificates,” the May 17 request for class certification says. “Defendants also have sought to abolish any opportunity for transgender individuals residing in Montana to change the sex listed on their driver’s license.”

The lawsuit itself calls the 2023 law’s definition of sex an oversimplification. The law defines male and female individuals as those who “under normal development” have XY and XX chromosomes, respectively, and declares there are “exactly two sexes” of human beings.

“SB 458 is scientifically incorrect and improperly seeks to limit the meaning of sex without legal, medical, or scientific justification,” the lawsuit says. “Sex exists on a spectrum.” The suit makes reference to research documenting the various biological, psychological and social factors involved in determining sex and gender identity that it says the law excludes.

“Once again the State of Montana has chosen to adopt a draconian policy that is clearly intended to marginalize transgender Montanans,” ACLU of Montana executive director Akilah Deernose said in a press release announcing the lawsuit. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where Courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.”